California’s DUI laws can be complex and confusing. In this section, our attorneys break down the rules and explain the process.
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What is the Difference Between Open Container and DUI? » What is the Difference Between Open Container and DUI?
Open container laws in most jurisdictions make it illegal for a person to have an open container of alcohol in the passenger compartment of a car. DUI laws, on the other hand, make it a crime for a person to either drive under the influence of alcohol, or drive with a BAC of .08% or higher.
Most states say that a violation of an open container law is an infraction that is punished with a fine. DUI charges, though, are more severe. A first-time offense is typically charged as misdemeanor and it can be punished with jail time of up to six months.
Note that a person can challenge either charge with a legal defense. For example, an accused can say he/she is innocent because the police did not have probable cause to stop the car.
Open containers of alcohol laws, in most U.S. states, make it illegal for people to:
These laws typically say a beverage is “open” if:
The main purposes of these laws are to:
Note that there are some states where open container laws do not apply. Some of these include:
A conviction of an open container charge is typically an infraction.
Most open container violations are punished with a fine.
Most jurisdictions make it a crime for a person to operate a motor vehicle while under the influence of alcohol.4
A motorist is considered “under the influence of alcohol” when his/her physical or mental abilities are impaired to the extent that he/she can no longer drive as safely as a cautious sober person.5
A first offense of driving under the influence is typically charged as a misdemeanor. While states impose different penalties for the crime, most say that the offense is punishable by:
Laws in 49 states say that it is illegal for a motorist to drive a motor vehicle with a BAC of .08% or more.7
Utah law says that a person is guilty of DUI if he/she operates a vehicle with a BAC of .05% or higher.8
Most first-time drunk driving convictions under these laws are misdemeanor offenses. The penalties are like those listed above for driving under the influence.
Note that states often impose harsher penalties when drivers have significantly high BAC’s (e.g., .20% or higher).
DUI attorneys advise clients that they can challenge violations of these laws with an effective open container or DUI defense. For example, an accused can challenge a violation of either set of laws by saying that he/she was stopped without probable cause.
As to violations of open container laws, a defendant can also use the defenses that:
As to DUI cases, a DWI attorney can challenge drunk driving violations by asserting that:
Any person charged with an open container or DUI offense should contact an experienced criminal defense attorney for help. A defense lawyer will provide sound legal advice as to which defense an accused should raise.
California’s criminal laws on open container violations and drunk driving charges are like those set forth above.
The state’s open container laws are set forth in Vehicle Code Sections 23221 – 23229 VC. The offense is typically an infraction, punishable by a maximum $250 fine.9
Vehicle Code 23152(a) VC is the California statute that makes it unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. A first, second, and third conviction of violating VC 23152(a) are usually misdemeanors.
Vehicle Code 23152(b) VC is the California statute that makes it “unlawful for a person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.” This offense is a misdemeanor.
The penalties for drunk driving in California represent those hardships discussed above.
If a person is guilty of driving while intoxicated and causes injury to someone, then the crime becomes a wobbler offense, per Vehicle Code 23153 VC. A prosecutor can charge a wobbler as either a misdemeanor or felony, depending on:
A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.
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